Friday, April 05, 2013

On Legal Aid, the Government has abandoned the poor, deserted and addicted

 From Brother Ivo:

When Lord Carey ruffled feathers recently with his claim that Britain’s Christians were being marginalised by this country’s 'aggressive secularism', he was rebuked with both judgement and anger. The preponderance of opinion was that, so shortly into the new Primate’s term of office, this was a time for the Church to return to time-honoured themes, whether that be the truth of the resurrection or, as some preferred, the need for justice on a variety of issues.

The latter featured prominently in the complaints, and we could illustrate the criticism with any number of themes which were advanced, from the 'bedroom subsidy' to the new Universal Credit. Both sides on these arguments claim moral rectitude and the ever elusive 'fairness'.

Brother Ivo is pleased to accept the implied invitation to write about justice because his mind enters the new month with a concern for an area of reduction in the Welfare State that few know about and fewer still of the major commentators have any interest in.

Let us first remind ourselves that the Bible takes human justice very seriously indeed. A word search of an online Bible will deliver at least 150 references to the word 'Justice' - some familiar, others less so. And they are spread throughout the books of the Bible from Exodus through the Psalms, via Job and Jeremiah, and from there into the New Testament, from Matthew to Revelation. From this we can safely conclude that we should have absolute confidence that ours is not a God indifferent to the subject and, insofar as He ever moves from the norm of the Law, it is to temper it with mercy. We may be sure of being judged fairly, but with compassion, and there can be little doubt that this is a template which humankind must follow.

We are specifically instructed to pay particular attention to certain groups, notably the poor, the foreigner, the widow and the orphan. Exodus 23:6 tells us: 'Make sure that the poor are given equal justice in court.' Deuteronomy 16;20 reads: 'People of Israel, if you want to enjoy a long and successful life, make sure that everyone is treated with justice in the land the Lord is giving you.' Deuteronomy 10:18 warns: 'The Lord defends the rights of orphans and widows. He cares for foreigners and gives them food and clothing.'

It is plain that God warns us that such groups are at risk of injustice. They are likely to be not only poor, but also politically and socially unconnected. They may be less articulate and disconnected from mainstream society. They are easily dismissed as 'not like us' and their needs overlooked. When caught up in disputes, such groups are jointly at risk of being taken less seriously; their worries perhaps regarded as more trivial than the disputes of the rich.

If the widows mite is more meaningful when generously offered, so her need not to be cheated of it is also proportionately greater. It is therefore all the more distressing, when considering our own judicial priorities, to find these groups have been set one against the other. To understand how, one needs to look at a little history.

Legal Aid was established as part of the post-war Welfare State. Initially it was administered by the Law Society via local voluntary committees of practising lawyers who sifted the cases, assessed financial eligibility and granted public funding to those cases which their collective professional judgement led them to judge as meritorious. Although this imported a degree of discretion and arbitrariness, it had the merit of measuring out scarce public funds towards the more meritorious cases. Not only was there a degree of cost effectiveness, but it proceeded on a deliberately different basis from the NHS approach of 'free to all at the point of delivery'. While there is a public interest in the whole population being healthy, there is plainly no similar interest in it being litigious. Public money was offered to support the litigant, but it was measured out with a degree of caution, and the society into which it was introduced was very different to the one we have today.

Families in the 1950s stayed together, for better or worse: wives had few rights to their husband's property; immigration was controlled at the absolute discretion of the government; welfare law was virtually non-existent; judicial review / administrative law was under-developed. Crime was at a much lower level and workers/accident compensation was a small sector of the legal market.

The system grew because society changed, and so did its budget and administration. Where legal aid offices had once run out of converted terraced houses, some of their present buildings would not disgrace Goldman Sachs. There have become complex bureaucracies administering a £2 billion budget. LSC pension pots can exceed £1.5 million. Yet, paradoxically, its clients have moved steadily away from the old model of ordinary people having access to justice.

By the 1960s we saw divorce reform, consumer rights, and housing and welfare law developing as complex specialisms. While once, most people only visited a solicitor to buy a house or make a will, ready access was given by a modest Legal Aid scheme which encouraged High Street practices to perhaps recruit a young idealistic lawyer to undertake a specialist area 'on the side'. The real money was still made in commercial law, conveyancing and probate. Legal partnerships were relatively small and still closely connected to local communities. Nevertheless, an original scheme that allowed brief advice for the princely sum of ten shillings encouraged people to ask, and those who weren’t eligible often received advice for free as a 'loss leader'.

When the house conveyancing monopoly was broken and conveyancing costs tumbled, firms were less keen to be so relaxed about loss leader advice, but Legal Aid expanded and soon its costs needed to be reduced. Thus it was that Mrs Thatcher began the reforms by introducing 'No Win No Fee'-style litigation from the USA, with results that many still regret. It did, however, ship a large Legal Aid cost off the public balance sheet where it grew to the wider cost of the community.

Politicians, police and judges did not help. Police abuses required all evidence presented to Magistrates Courts to be provided through advance disclosure (previously unheard of and very costly). The theft of a sandwich that once took 20 minutes in court now generated a bureaucratic trial of considerable length. Every arrested person had to be offered solicitor representation free of charge, 24 hours a day.

Since 1948 there have been over 70 public inquiries into child deaths and abuse, alerting us to the need for yet more complex Child Protection legislation. There are many other examples of how the system grew like Topsy. The Financial Services 'Big Bang' then created opportunities for complex fraud on a massive scale, and Legal Aid began to be offered to the Super Rich and their Super Rich lawyers. Do remember Asil Nadir as the story unfolds.

If there was one identified straw which finally broke the camel’s back, it was the 1990s wave of immigration and asylum cases which created a new demand for lawyers and interpreters at a time when the government began to seek ways of reducing the Legal Aid bill, even though it is less than 2% of the NHS budget. Under the Human Rights Act, many cases of immigration and asylum related to 'Absolute Rights' whereas Family Law cases primarily dealt with disputes over 'Qualified Rights' (see HERE). So began a series of reforms which have slowly and effectively removed Family Law Legal Aid from the poor unless there is either a removal of the child by the state or issues of domestic violence.

Brother Ivo is grateful to the firm of Farleys for a succinct explanation of these changes. From 1st April 2013, we are turning against the poor, the deserted, the addicted, and those desperate to maintain contact with their children. They will include some of the most vulnerable people in our society, and we are delivering to them the message: 'You’re on your own pal'. There are over a million people addicted to alcohol, and 300,00 addicted to drugs. They will feature heavily in these cohorts of need.

Family Law has a very distinct character. Most legal disputes relate to a specific and fixed set of facts, which may need to be clarified and addressed, but are largely historic: a car has crashed; a contract has been breached; an assault been alleged. What is to be done about it? In much Family Law, however, the judge has to deal with a dynamic situation: a job has been changed; a child will not go for contact; depression has intervened; has father finally given up drinking? Who will pay for the drugs/alcohol test to prove the point? Family Law has a high degree of relationship management involved. A seemingly logical solution on day one unravels on day 138; an unexpected development changes everything for the good or the ill.

From this first week in April, most couples beset by anger, fear, disappointment, distrust and financial uncertainty will be on their own in this alien and bewildering legal environment. Judges will have courts full of under-prepared distressed people, some suffering a variety of mental health or depressive traits which they do not understand themselves. Woe betide the ordinary litigant who has paid for his day in Court only to find that the preceding cases have over-run and that he/she needs to return another day, paying the legal team for an unproductive day’s waiting.

It will get progressively worse. Judges rely for guidance on officers of Cafcass, and follow their advice in most cases. Changes that have already occurred in Cafcass have already driven out their most experienced officers and their replacements have been recruited with only three years' experience in Social Work. Their work is strictly time-limited and their recommendations and conclusions can be, and are, edited and changed by managing bureaucrats who have never met the couples or children involved.

There are currently many judges who have reached their position having advised, known and sat with the poor as they have coped with life’s tragedies. Their careers have embodied the servant-song ideal:

I will weep when you are weeping; 
When you laugh, I'll laugh with you. 
I will share your joy and sorrow 
Till we've seen this journey through.

Compassionate legal professionalism has helped many a family through difficult times, and the trust that developed with individuals and communities has frequently enabled troubled people to begin to see the wood for the trees. It is a truism that the settlement which is agreed holds whilst that which is imposed frequently implodes and returns to Court.

Not all Judges are equipped to manage litigation by the unrepresented. The current crop of good ones will have come through the ranks understanding in depth the people who will henceforth be arriving under-prepared in Court and vulnerable to judicial bullying. A little tough love is sometimes called for, but when, having to make a judgement of Solomon, it helps if one has the wisdom of Solomon.

Frankly, many of the clones recruited to the Judiciary by the Ministry of Justice bureaucracy will lack the common touch in future years. Since Labour dismantled the old Office of Lord Chancellor, we now have Ministers of Justice who have no experience of the judicial life which countless of their predecessors brought to the role. It will come as little surprise that we are seeing the 1949 ideal of a Legal Aid service for the less well off decimated, so that it now largely excludes the ordinary law-abiding citizen who might once have thought that Legal Aid might have something to do with helping them.

(Posted by Brother Ivo)


Blogger Roger Pearse said...

I suspect most people reading this will be middle-class taxpayers. I wonder how many of us could ever claim legal aid. Any of us?

If the answer is that legal aid isn't something any of us could ever use ourselves, then why on earth should we pay (and pay and pay) for it for others?

Charity is a fine thing, but few would consider that funding lawsuits for others (and never for oneself) is a natural part of it.

5 April 2013 at 10:10  
Blogger D. Singh said...

The system and its budget have grown for many reasons and in my opinion the principal cause has been the suppression of shared Christian values – replaced by humanist (not to be confused with humanitarian) values.

In the past, people understood (more or less) the vast corpus of Biblical values and law - and practised them; for example, love your neighbour as yourself; births out of wedlock were stigmatised; divorce rates were low; the bobby on the beat would administer a swift slap for disorderly behaviour; nurses working in hospitals (acting on Christian values) would often work without pay in emergency situations; there was little immigration.

As people were acting within the vast corpus of Biblical law and values there was no need for freight trains of secular statute law (and case law).

Our Oxbridge mentor class of the 1960s believed when they entered universities that they knew more about ‘freedom’ (in reality licence) at the age of eighteen than their fathers who had fought and died in World War II. That generation began by questioning all authority and ended by deconstructing moral authority structures (now it is attacking the traditional family – expect more train loads of litigation).

That generation replaced duties and responsibilities with rights – and when rights are introduced the chief question is: who or what has the duty to fulfil those rights (more litigation).

It was the American psychologist Lawrence Kohlberg who in his 1972 (query) thesis showed that where there is a decline in moral values – people look to the law as a moral reference point. Of course where the Biblical corpus of law has been abandoned then it needs to be replaced by another vast corpus of law: nature abhors a vacuum. Where one corpus of law cost little to administer and was discarded, the corpus of law to replace it would cost the earth.

Today, we have the criminal law, the civil law, the law of equity, European Convention on Human Rights law and the ship loads of European Union law (more immigration, more interpreters, more children whose education is frustrated, more patients for the NHS, less land to build houses, more crime (the criminal justice system is a social good which is superior to many criminal justice systems on the continent (so it makes sense to commit crime in Britain rather than in Bulgaria)).

All this and more my son – just so that the humanists can prove secular law works better than Biblical law and values.

Best of British luck.

5 April 2013 at 11:30  
Blogger Simon said...

As a middle class taxpayer one ought to be able to afford one's lawyer. Unfortunately, the old adage that the law, like the Ritz, is open to all becomes ever more to the point.

As Brother Ivo's post describes, the process of the lw becomes ever more expensive. Evidence is increasingly gold plated; evidence has to be gathered and formalised at the outset of a case, front loading the costs; court fees are onerous; solicitors have to cover the cost of massive professional indemnity insurance. Maybe what results is beautiful justice, maybe, but it comes at a massive price.

For those looking to Legal Aid and for those relying on their own resources, and for all those in between, practical reform of the legal system with a realistic eye to the reduction of cost is necessary. That shold also include greater quality control of the legislation, primary and secondary, passed by Parliament.
Reform will also involve the problem of affordable quality. Some quality will need to be abandoned to achieve affordability (whether for the client or the entity which finances the client).

How is such reform to be achieved? I wish I could help there. The two things that are clear are that the lawyers are too close to see the wood for the trees, and that most politicians have too many axes to grind.

5 April 2013 at 11:39  
Blogger MFH said...

I think rather we should look at why going to law costs so much. after all its normally a few people sitting in a room and chatting.
Then we should look at why the legal system is too complicated for the layman to take even the most basic of cases for themselves.
If lawyers didn't charge, and protect the old boys(and gals) network for themselves so much, the cost of justice would be less and therefore legal aid would be more affordable.
Does the church have a say on this - of course it does - true faith covers every aspect of life.

5 April 2013 at 12:29  
Blogger ukFred said...

AS I read Bro. Ivo's comments, I thought of those children who had been abused in the 1960's to the 1980's, victims of the Moors murderers, Peter Sutcliffe, Jimmy Savile and others and I wondered how often children's voices were ignored

5 April 2013 at 12:40  
Blogger Manfarang said...

D Singh
"there was little immigration"
There was a lot more emigration.
Those that didn't like things could get a ticket to Australia for ten pounds sterling.

5 April 2013 at 15:19  
Blogger alan said...

Legal aid does not create a level playing field. Someone on legal aid can, out of spite, take another person (who cannot claim legal aid) to court, lose the case, and still nearly bankrupt his opponent.

5 April 2013 at 16:11  
Blogger alan said...

Legal aid does not create a level playing field. Someone on legal aid can, out of spite, take another person (who cannot claim legal aid) to court, lose the case, and still nearly bankrupt his opponent.

5 April 2013 at 16:12  
Blogger Jonathan James | Associate Solicitor said...

How can I link this specific post to other social media? Brother Ivo is so much more eloquent than any of the legal commentators on this subject.

5 April 2013 at 16:52  
Blogger Office of Inspector General said...

Ivo, it’s about time this well filled gravy boat was taken off the communal table and slung through the lounge window. Live a good and pure life and you will not need legal services beyond the basics, probably. If you find you do, then you pay for it. It’s your business.

When the ECHR first listed their ‘human rights’ this man had a foreboding. Even then he knew that those who least deserved their so called rights would be out there fighting for them on the back of the tax payer. The only issue he underestimated was the number of Johnny Illegals who use OUR system financed by US, to prevent their hides being rightfully sent back to whatever God forsaken hole they came from. Even rapists, thieves and killers, who not only having done their crimes in their country of origin, have done them over here too.

Legal Aid is an affront to justice, and look at the way those damned muslim terrorists use it to cling on here. Legal Aid has corrupted justice !

Get rid of it, and we will ALL be the better for it.

By the way old chap, what have alcoholics and drug addicts got to do with the price of fish ?

5 April 2013 at 17:22  
Blogger Office of Inspector General said...

Erudite and knowledgeable fellows…

Who was it who said in effect…

“If you ask me for my wallet, I would deny you it. If you fought me for my wallet, I would fight to keep it. But if you went to a court of law, with intent to prove that my wallet is in fact, through the wonders of litigation, your wallet, then sir, I would hand over my wallet to you. And on considering the costs I was saving, I would know I had the better of the bargain”

5 April 2013 at 17:25  
Blogger carl jacobs said...

Shakespeare was right. The first thing we do, let's kill all the lawyers.


5 April 2013 at 18:29  
Blogger IanCad said...

Two lawyers can always make a living in a town where one will starve to death.

5 April 2013 at 18:50  
Blogger Office of Inspector General said...

It’s rather unfortunate that the person Jesus said “Go, sin no more” to, was a prostitute and not a lawyer.

Christendom is all the poorer for that, what !

5 April 2013 at 19:29  
Blogger Brother Ivo said...

Brother Roger, you rather miss the point of the post; there was a time not so very long ago when a teacher/ nurse/ small businessman could and did receive legal aid.

They were assessed, an initial capital or monthly payment was made a condition of grant ( which could be revoked if unpaid). If there were property " won" a charge would be put on the property which had to be repaid on sale and bore interest until then.

The lawyer's hourly rate was about 40% of private rate and was reviewed and often reduced by the Court.

Many firms undertook the work so it was widespread and available.

Now we have both the disconnect -and a denial of access to justice.

5 April 2013 at 21:39  
Blogger Office of Inspector General said...

The lawyer, when he becomes a judge, finds nothing to stop him from perverting man’s law. Man’s law was made by the elected. Who elected the judges ?

5 April 2013 at 22:15  
Blogger len said...

As we live in an increasingly secular society perhaps we should not be too surprised at the inequalities and injustices that are becoming prevalent?.Justice , Truth and Honesty are all Judeo/Christian virtues.

Now under secularism 'there is no truth'.'all things are relative'

'So justice is driven back, and righteousness stands at a distance; truth has stumbled in the streets, honesty cannot enter.(Isaiah 59:14)

We are reaping what we have sown!.

6 April 2013 at 10:46  
Blogger Jonathan James | Associate Solicitor said...

The rule of law is what separates civilised society from barbarism. Clapped out, bigoted cliches about lawyers expose nothing other than immaturity. Yes, of course I'm a lawyer, what else? If some of you guys can't find anything frankly more grown up to say than the above on what is actually an exceptionally serious subject, you'd be better staying silent.

Law has already become unaffordable to the middle classes; placing it out of the reach of the poor doesn't constitute progress.

6 April 2013 at 20:39  
Blogger Office of Inspector General said...

Clearly contempt of your fine profession M’lud. Perhaps a few hours in the police court cells to contemplate on their disgraceful behaviour, what !

Take them down !

6 April 2013 at 20:45  
Blogger Jonathan James | Associate Solicitor said...

Perhaps if you acquired some genuine knowledge on the subject, OIG? I used to have a sense of humour about the subject but I seem to have lost it now. Sometimes a joke runs out of legs and ask these have.

A legal aid lawyer is paid less per hour than your garage charges for servicing your car. No, I don't do legal aid work and I haven't for over ten years. I have a wife and three children to support and legal aid is a rubbish way of doing that. What you don't value, you lose and we just have.

6 April 2013 at 20:59  
Blogger Office of Inspector General said...

Mr Justice James. Nothing personal against you, that man, but do you think a profession can cock a snoot at statute law by pissing all over the spirit of it, and self congratulating itself on doing so, and not attract the odd negative criticism, as Her Majesty might say...

You reap what you sow..

6 April 2013 at 21:04  
Blogger DanJ0 said...

Blimey, I thought those Associate Solicitor posts were blogger-oriented spam bots. I didn't realise they answered too! :O

6 April 2013 at 21:31  
Blogger DanJ0 said...

JJ: "A legal aid lawyer is paid less per hour than your garage charges for servicing your car."

That's about £100 an hour!

6 April 2013 at 21:33  
Blogger Office of Inspector General said...

Where’s James gone ? Slunk away has he...

Fellows, the Inspector has it on good authority that the days of brandy and cigars are far from over after law society dinners, though of course one must cover himself by saying not necessarily on EVERY occasion, lest the buggers come for him. And no, they do not congregate around the chilly entrance on a London street...

Now, one is not definite about this, but isn’t there an act of parliament “Persecution of Tobacco Users, 2007”

And let no one think they are above the law, what !

6 April 2013 at 21:43  
Blogger len said...

I hope' james' isn`t charging for his post nothing comes free in that game?.

6 April 2013 at 23:28  
Blogger Jonathan James | Associate Solicitor said...

No, I went to be actually. DanJO, you're absolutely right. And the very best hourly rate a legal aid lawyer can get is around 65 an hour. Standard rate is around 45 an hour. The lowest rate is 25 an hour. A composite of all three? Not sure, depends on the case bit less than half the garage charges, probably.

Anyone know what kind of cigars the local motor traders smoke at their dinners?

PIG, I suggest you get yourself to your local County Court and ask to sit through a possession list to find out what real lawyers are really doing.

7 April 2013 at 08:40  
Blogger DanJ0 said...

To be fair, the lawyer jokes are usually from America where lawyers famously appear to be held in some disregard, probably due to the litigious nature of society over there. I don't suppose it helps the image that people like Cherie Booth appear to have made large sums through her barrister and judge work, £350K a year by some estimates.

7 April 2013 at 09:57  
Blogger IanCad said...

DanJo wrote:

"--the lawyer jokes are usually from America where lawyers famously appear to be held in some disregard."

True, but Americans also have a better sense of humour; certainly more verbal and much less prurient and sophomoric than the British variety.

Having dealt with lawyers in both lands I must say that I hold them as equally venal.

The British do it with a kiss.
The Americans with a sword.

7 April 2013 at 12:19  
Blogger Jonathan James | Associate Solicitor said...

In May 2011 the Daily Mail reported " Britain's highest-paid GP earned a staggering £665,000 last year from the NHS." What this means is that all doctors everywhere are money grubbing, unprincipled parasites whose sole interest is in living the high life at the expense of those unfortunate to have need of their services. Well it must do, mustn't it?

7 April 2013 at 15:42  
Blogger Office of Inspector General said...

James. Calm down that man, it’s only a blog site. Anyway, we don’t have any scorn against the lowest of the order grubbing for a living in the ground as you.

One’s thoroughly deserved scorn for your profession is reserved for those cunning swine who can, through the wonders of a court room, make black to be white. A position of dexterity that you can only dream of, if your posting style is anything to go by...

7 April 2013 at 16:09  
Blogger Office of Inspector General said...

James. One for your children....

“What do you call a pig with three eyes ?”

PIIIG (Pronounced ‘Peeeg’)

7 April 2013 at 16:15  
Blogger Jonathan James | Associate Solicitor said...

This government, like others before it, have used the tired old cliches of over paid lawyers to strip away the last remaining fragments of access to justice from all but the very well off. I've stayed calm about this sort of thing for the best part of twenty years. I've laughed at the better anti lawyer jokes (and some of them are really quite good). However, I daily find my place in the front line trenches of ordinary litigation and see things going from bad to very much worse, so I'm not prepared to carry on being calm. In the light of what brother Ivo writes, it would be quite wrong of me to do so. I WILL set out to challenge the silly caricatures of my profession because these have been cynically used by wealthy politicians to deprive ordinary people of justice.

7 April 2013 at 16:58  
Blogger Office of Inspector General said...

“Ordinary People’s Justice” eh, lets see....

Accident at Work ? Call us on....and receive a free walking stick.
Has the talking stopped and it’s time for divorce ? Call us on...and if you are a woman, learn how to take him for every penny.
Been refused asylum ? Call us on...and get our booklet of useful lies you haven’t thought about using.
Involved in a vehicle shunt ? Call us on....and receive a complimentary neck brace.

7 April 2013 at 17:21  
Blogger Office of Inspector General said...

In Liverpool, there are no few than 10,000 luckless souls who wish to sue the council for tripping on uneven pavements...

7 April 2013 at 17:32  
Blogger Brother Ivo said...

Jonathan James has the major advantage of actually knowing whereof he speaks which cannot be said of every poster in this debate.

7 April 2013 at 18:05  
Blogger Office of Inspector General said...

Indubitably Ivo. It does so annoy when the uninformed and posturing post their drivel, don’t you find...

7 April 2013 at 18:22  

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